When It Comes to the Death Penalty

WHO DOES LIFE belong to? The answer to this question also decides who gets to take life. In an earlier age, it was assumed that your creator was God, and so kings, who were thought to rule by divine right, had ownership over you. They could kill you because God had sanctioned it. In the modern nation state, which is ostensibly secular, this question becomes somewhat complicated. The ‘country’ is not a real thing; it is just an agreement among its citizens, a willed concept that exists for the benefit of those who participate in it. How can something that is non-existent therefore take upon itself the right to kill the very people its duty is to protect?

A majority of the countries in the world have decided that the state cannot kill its own citizen, no matter how horrible the crime. In India, we belong to a minority club. An Amnesty report, ‘Death Sentence And Executions 2017’, had noted this: ‘At the end of 2017, 106 countries had abolished the death penalty in law for all crimes and 142 countries had abolished the death penalty in law or practice. These figures reaffirm, once again, the global trend towards abolition of the death penalty. Only an isolated minority of countries continue to resort to executions. Just four countries were responsible for 84 per cent of all recorded executions in 2017.’

On India, it observed, ‘Against international standards, India, Singapore and Thailand expanded the scope of the death penalty by adopting new laws that would impose the death penalty for hijacking, nuclear terrorism and corruption, respectively… Research by the Centre on the Death Penalty, National Law University, indicated that the courts of India imposed 109 new death sentences, including 51 for murder and 43 for murder involving sexual offences. This represented a decrease in the total number of death sentences imposed (136 in 2016), as well as in those imposed for murder not involving other offences (87 in 2016). Two new death sentences were imposed for drug-related offences. The Anti-Hijacking Act, 2016, which provided for the death penalty for hijacking resulting into death, came into force on 5 July.’

The law, as laid down by the Supreme Court, says a death sentence is only merited in ‘rarest of the rare’ crimes. On the other hand, in practice, there is reluctance to kill a criminal even if a death sentence is awarded. And so they languish in jail for a long time. One of the ways by which this happens is when the President, who is supposed to ultimately decide on a final plea for mercy, simply takes no decision. Abdul Kalam, when he was President, had 28 mercy petitions before him and decided on only two, okaying one and rejecting the other.

In recent times, Pranab Mukherjee as President has been more proactive in this matter. Of 34 mercy petitions he heard, he only pardoned four. And if what happened this week is any indication, current President Ram Nath Kovind might be of the same mould. Kovind rejected the first mercy petition that came before him, of one Jagat Rai. The crime the man was accused of was the killing of a family of five children and their mother, when he, along with a number of associates, burnt the house while they were sleeping. This was in retaliation over a dispute he had with the children’s father whose buffalo had been stolen by Rai and he had made a police complaint. They tried to kill the father also, but he managed to escape. The Supreme Court in its judgment upholding Rai’s death sentence had noted: ‘The crime, enormous in proportion having wiped off the whole family, is committed so brutally that it pricks and shocks not only the judicial conscience but even the collective conscience of the society…’

The line is instructive because often the argument presented for an execution is that it will deter future crimes. Here, the court makes it clear that it is retribution. As a deterrent, the death sentence is of little use because then the first such sentence should also be the last. Studies analysing the correlation between capital punishment and crime have found no evidence of it. Says a 2015 article on this in The Conversation: ‘So what is the evidence on deterrence? Here the answer is clear: there is not the slightest credible statistical evidence that capital punishment reduces the rate of homicide. Whether one compares the similar movements of homicide in Canada and the US when only the latter restored the death penalty, or in American states that have abolished it versus those that retain it, or in Hong Kong and Singapore (the first abolishing the death penalty in the mid-1990s and the second greatly increasing its usage at the same), there is no detectable effect of capital punishment on crime. The best econometric studies reach the same conclusion.’

As a society, India needs to figure out whether it is alright with revenge as a guiding tenet. Satisfying the need for retribution might not be a worthy endeavour if all it does is cater to an instinct that has its roots in barbarism. Also, the process itself becomes a bigger punishment than the sentence. For instance, Jagat Rai has been in prison for over a decade. Waiting for one’s own death for such a long period is an additional torture over the sentence itself. If at all India wants to remain among the decreasing number of death penalty adherents, the least it can do is make it quick.